Nicholas von Bloedau v. Transcom Worldwide (North America) Incorporated, 2014 HRTO 289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas von Bloedau

Applicant

-and-

Transcom Worldwide (North America) Incorporated

Respondent

RECONSIDERATION DECISION

Adjudicator: Eric Whist

Date: March 5, 2014

Citation: 2014 HRTO 289

Indexed as: Von Bloedau v. Transcom Worldwide (North America) Incorporated

WRITTEN SUBMISSIONS

Nicholas von Bloedau, Applicant

Self-represented

Introduction

1The applicant filed an Application alleging discrimination with respect to employment on the basis of sex. The Application alleged that the applicant was subject to progressive discipline culminating in the termination of his employment because of complaints made by fellow employees about his personal body odour. The Application alleged that these complaints were made by females who have different expectations of standards for what ideal body odour should be. The Application contended that the applicant, as a male employee, could not and should not be required to live up to these subjective standards and the respondent’s willingness to act on these complaints constituted discrimination.

2On December 19, 2013, the Tribunal held a summary hearing to consider the Application. On January 17, 2014, the Tribunal issued Decision 2014 HRTO 67, (the “Decision”), dismissing the Application on the basis that the applicant had no reasonable prospect of establishing that the respondent’s decision to discipline and then terminate his employment because of repeated complaints about his body odour was related to his sex. On February 2, 2014, the applicant filed a Request for Reconsideration asking that the Tribunal reconsider its Decision.

3Under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The relevant Tribunal Rule is Rule 26.5 which reads, in part, as follows:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

4The Tribunal has also issued a Practice Direction to provide guidance on how the Tribunal exercises its reconsideration powers (Practice Direction on Reconsideration). The Practice Direction states, in part, that:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

5As is evident from the Rules and made explicit in the Practice Direction reconsideration is discretionary. It is not an appeal or an opportunity to re-argue a case. As the Tribunal states in Espey v. London (City), 2009 HRTO 271, reconsideration is not an opportunity for a party to add additional arguments upon learning that its original position was unsuccessful. And as the Tribunal states in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

6The applicant provides written submissions in support of his request for reconsideration. The applicant makes a number of arguments about why the Decision is wrongly decided. The applicant submits that in arriving at the Decision the Tribunal did not duly consider the evidence that was before it. He submits that there is further evidence that is in the respondent’s possession that would support his Application if it was allowed to proceed.

7However, as noted the Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal, an opportunity to re-argue a case or an opportunity for a party to add additional arguments; nor is it available simply because a party disagrees with the decision. There must be more than a disagreement with a decision or alleged errors to find that the requirements set out in Rule 26.5 have been reached. Having reviewed the applicant’s request for reconsideration I find that the applicant has not met the burden of establishing that any of the criteria justifying reconsideration set out in Rule 26.5 apply in his case.

8The applicant argues that I did not properly consider the evidence before me. He submits that the documents he provided at the hearing included numerous references to academic studies that conclude that women are more sensitive to odour than men including to the odour of men. Indeed, he refers in considerable detail to these studies in his request for reconsideration.

9I accept that there are studies that suggest women have a greater sense of smell and may be more sensitive to smells associated with men. However, the assessment made in the Decision was that this was not a universally held view in the academic literature the applicant provided.

10However, more importantly, I went on to explicitly state in the Decision that even if I accept that the applicant could point to evidence that women do have a greater sensitivity to smells, and to the smell of men, this does not necessarily render a complaint about the applicant’s body odour made by a woman or women to be overstated, invalid or based on the complainant being female. I further noted in my Decision the applicant’s argument that a man would not have found his body odour objectionable or would not have complained about it is completely speculative. Finally, and most importantly, I stated in my Decision that both at the summary hearing and in the disciplinary documents he disclosed the applicant accepted that he did have, at times, problems with personal hygiene and body odour while working for the respondent. In other words he acknowledged that he recognized that he did have an issue with body odour. Under these circumstances I fail to see how my consideration of the evidence is related to any of the factors for reconsideration outlined in Rule 26(5).

11The applicant’s complaint about how I considered the evidence before me is really an attempt to re-argue the case because the applicant disagrees with my assessment of the evidence.

12The applicant submits that there is potential new evidence available to him that would establish that he has a reasonable prospect of proving his allegations. He submits that if he had access to the names and gender of the persons who complained about his odour he could indeed establish that the complaints were all made by females. However, my Decision essentially addresses this issue when it states that a greater sensitivity to smell and the smell of men does not necessarily render a complaint about the applicant’s body odour made by a woman or women to be overstated, invalid or based on the complainant being female. And importantly I note in my Decision that the applicant himself acknowledged that he had issues with his body odour and needed to attend to his personal hygiene. As a consequence I do not find that obtaining further evidence that would factually establish that the complaints about the applicant’s body odour were made by female employees would be determinative of this case, that this information would lead me to a different decision.

13I agree with the applicant that discrimination can be subtle, that it does not have to be intentional and that a decision can be discriminatory even if there are other legitimate factors for the decision as long as one of the factors was discriminatory. However, the applicant has not provided a basis for me to reconsider my Decision. I remain satisfied that he has no reasonable prospect of establishing that he was subject to discriminatory treatment because of his sex.

14The Request for Reconsideration is dismissed.